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Last week’s train crash in Germany highlights again the failed promise of high-tech rail lines to help our transportation needs. In the United States, there is an uncertain future for Seattle’s once-futuristic monorail, which was built to ferry passengers to and from the 1962 World’s Fair and, just as importantly, to be part of the fair itself.

Plagued by mechanical problems and a recent accident, the monorail is now halted and the city is debating whether to restart it. Seattle’s one-mile-long monorail was never much more than a tourist attraction; more serious efforts at urban monorail transportation, such as Detroit’s underutilized “people mover,” have not been much more successful.

Until the world changes radically, high-tech rail lines are simply too expensive and too limited in their ability to connect spread out suburbs to spread out jobs sites in today’s American metro areas. (They hold more promise for denser or more linear urban areas outside the United States.) For American metro areas, only dedicated bus routes, like those of Curitiba, Brazil (see picture)

hold any serious promise of encouraging much greater public transportation usage in the coming years.

Pasadena, Cal., used to be a paradise.One can get wistful about life in the old L.A. suburb in the 1920s, when one could quickly drive one’s Model T up to the nearby wilderness of the San Gabriel mountains on a Saturday morning, marvel at the view (and even see snow in winter), drive back through uncrowded roads to one’s attractive little bungalow for lunch (finished with home-grown oranges), then take the electric rail line over to Santa Monica for a walk along the warm beach at sunset, returning home by the same transit for dinner.

Today, of course, times have changed.There are ten times as many people in the Los Angeles area as there were back then, the drive up to the mountains (with less snow in this age of global warming) may get you stuck in traffic and smog, and you’ll have a very long wait for the electric streetcar, which even if it did come would probably take a couple of days to work its way across the Los Angeles streets to the packed beach.

The housing boom has been further changing Pasadena, and long-time residents are complaining about the loss of the old suburb’s famous “character,” according to the L.A. Times.[And see a similar complaint about changes in Madison, Wis., in the reader comment to this Tuesday’s entry about tear-downs.] Pasadena (now a close-in suburb) is trying to do its part for “smart growth” by allowing infill of high-density construction. The city is permitting the construction of many new multi-family housing units, often in mixed-use complexes with stores.This is the kind of dense development that new urbanists argue for.It preserves land at the outskirts and allows for trips to the dry cleaner or grocery store without a car.But the new urbanization of Pasadena means that some renters and some established retailers –- including some local semi-landmarks –- are being pushed out.

Governments of established localities across the nation are facing this difficult question:Allow for denser development, or preserve old character?Years ago, nearly all suburban communities with powerful residential lobbies chose the latter.With today’s concerns about sprawl and the emphasis on “smart growth,” some suburban communities are choosing the former.The effects on established residents may be somewhat adverse, but the benefits accrue to the entire region.

After being gleeful over the early millennium skyrocketing of housing prices (the “last big gift of our nation to the 1946 baby boomers,” some have said), the media and economists now predict doom and gloom from the housing slump. Many economists predict that the flatness (or even decline) in housing prices will depress housing construction, which will have a negative domino effect across the economy.

But do housing prices affect construction all that much? One economic critique is that that our restrictive land use and housing laws have artificially constrained the supply of new housing units, thus driving up prices. See a 2005 study of the Harvard Institute of Economic Research to this effect, which I discussed at 37 Urban Lawyer 385. With laws limiting supply, does this mean that small variations in housing prices don’t affect construction numbers, because construction is already at its legally constrained peak?

The numbers are interesting. According to the National Association of Home Builders and the Commerce Department, housing starts did indeed shoot up significantly in recent years, to more than 2 million in 2005 –- a number that was more than double the total from the housing-price-stagnant era of 1991. The monthly numbers for 2006, however, are falling rapidly.

How does the 2005 peak compare to years past? Interestingly, the 2 million total was exceeded way back in 1972 (just before the oil and stagflation crises of the next few years). So, yes, housing prices do affect the quantity supplied, but the correlation seems to be less than crystal clear.

Many established neighborhoods are concerned about the “tear down” phenomenon, in which a small house is replaced by a much bigger one. Tear downs have become more popular in recent years with the high prices of houses; a family wishing to “move up” will often find it easier to stay, avoid the high cost of land and transactions costs, and take advantage of relatively moderate costs of construction by building a new house on their old property.

Neighbors are not so thrilled with having a bigger house nearby, of course. National Public Radio broadcast a segment this morning about complaints in Kenilworth, an affluent suburb outside Chicago, where little old houses now exist next door to giant McMansions. One neighbor is unhappy at the loss of her view, privacy, and shade from a now-torn-down tree that was once in her neighbor’s yard. Of course local governments should check their zoning laws to ensure that new houses aren’t “too big” for the area (no three-story houses, for example, in a neighborhood of one-story bungalows) and don’t come too close to property boundaries.

Other than this, however, I assert that tear downs are a fairly healthy phenomenon. They are the quintessence of infill –- new construction in already built-up areas, as opposed to development “sprawl” in greenfields and exurbs.

Why is there so much pressure for sprawl when there are so many old urban and suburban areas in which higher density and infill could be tolerated? The reason is that American families don’t want to live “just anywhere” –- they demand neighborhoods with “good schools” (I’ll let you figure out precisely what they mean by this) and other community amenities. Many older areas simply don’t make the cut. And they demand more space than generations past to fit their huge vehicles, their big-screen TVs, and their new expectations of high-square-footage in the affluent society.

Accordingly, land use law shouldn’t make it too hard for families to tear down and rebuild. We might hope that more people would want to stay in their old houses. But if law makes it too difficult to rebuild, families will simply move to the exurbs. Neighbors may not like it, but tear-down-and-rebuild is a “second best” option for land use policy.

Land use law should not be used as a surrogate for other policy judgments. A striking example is currently at issue in California, where proposition 83 –- in California, almost anything and everything can be a proposition -– would make it unlawful for any released sex offender to live within 2000 feet of a school or park. The L.A. Times reports that this would cover nearly all of the city of San Francisco and most of the built-up Los Angeles area. Accordingly, many offenders -– which include people such as distributors of adult obscenity, not just child sex offenders -– would have no other legal option but to live in rural areas -– a fact that chagrins rural policymakers. The proposition also reflects our nation’s paranoia about child safety. Expect the rural areas to respond with their own ordinances to keep sex offenders out, as part of an “arms war” of ever-tighter regulations.

The term “smart growth,” like “sustainability” or “stewardship,” can be abused, as it is increasingly often slapped on anything and everything to give it a cachet of progressivism. Clarity is needed. The Smart Growth Network and the International City/County Management Association have published a 32-page publication, helpfully entitled “This is Smart Growth,” which gives dozens of examples of development projects in cities, suburbs, and small towns that deserve the “smart growth” label. The publication can be ordered free or downloaded here.

One of the most notable land use court decisions this summer was the Nevada Supreme Court’s striking another blow for property owners who claim that zoning has “taken” their property rights. The plaintiff in the 1980s had bought vacant land near the Las Vegas airport that was already subject to zoning height restrictions. With increased air traffic at America’s most booming big city, Clark County passed more restrictive zoning ordinances. These restricted construction considerably below the 500-foot “navigable airspace” set forth by federal law. As they approached and took off from the airport, some planes actually passed less than 500 feet above the plaintiff’s land.

Applying both the federal Constitution and the Nevada Constitution, which sets forth a “rich history of protecting private property owners against government takings,” the Nevada court concluded that the county ordinances “appropriated his private property for a public use without the payment of just compensation,” because of a “Lorretto-type” physical intrusion. The plaintiff was awarded more than $16 million, including interest. I understand the position that frequent flights could be considered a physical intrusion, but I find it harder to understand how the height ordinances themselves are a compensable taking. The court concluded that the plaintiff had a “valid property interest in the airspace above his land” up to 500 feet; does this mean that any regulation of such airspace is a taking? Considering that buildings should not, of course, rise to anywhere near the levels at which planes fly, what if planes flew to a minimum height of 600 feet over plaintiff’s land and the zoning ordinance thus limited buildings to 400 feet –-would this still constitute a compensable taking?

Automobile dependency and a lack of sidewalks are phenomena usually associated with the suburbs. But cities and rural areas hold their own special roadblocks to non-auto travel. In rural areas, the old country practice of “walking along the road” has become even tougher with increased auto traffic and stronger private-property fencing. Meanwhile, in the city, where sidewalks allow walking, governments are trying to facilitate bicycle transportation as another alternative to auto travel. Changing laws to help bicyclists faces the stereotype of cycling as suitable only for young people and fitness freaks, even though biking is a regular part of life in many other countries. As with buses, I suggest that dedicated bicycle lanes (preferably with barriers to keep cars out) as the only viable solution to encouraging more Americans to eschew their autos.

Here are two stories on efforts to change laws to help alternatives to auto travel –- one from Virginia’s Shenandoah Valley, into which have flowed the ideas of density and clustered development that facilitates walking, and one from New York City, which is building more bike lanes and increasing bicycle safety.

The $7 billion that Congress has agreed to pay for home rebuilding in Louisiana is finally starting to make its way to homeowners. According to a report released last week, more than half of the early applicants say that they plan to rebuild on their old plots, rather than accept a buyout and rebuild else. This is good news for Louisiana and especially for New Orleans, which wants more of the 200,000 residents who are still away to return. Future news is unlikely to be so rosy for the city, however; early applicants are more likely to be persons with a strong desire and plans to rebuild in the city, while later applicants are likely to be people who are still figuring out where to resettle. The Crescent City probably will have to accept a future with a much shrunken population, which poses problems for rebuilding infrastructure, such as for streets and sewers. Most eastern cities have seen their populations fall in the past 50 years (St. Louis and Cleveland hold only about half as many residents as they did 50 years ago), but none as rapidly as New Orleans.

Here's a quirky Friday story from my home region of Tampa Bay, Florida. It appears that quite a few residents live in houseboats in the public waters, where the inconveniences of poor sanitary facilities can be trumped by a lack of property taxes. But in (or off the coast of) many localities, governments are cracking down on "live aboards" -- and some boaters think that legal restrictions often follow the development of new and expensive beachfront condos, whose owners don't like the idea of, or the view of, people living off shore. Gulfport, where I live, has cracked down, according to the story, but not yet St. Petersburg. With hundreds of new high-rise condo units coming to the once-sleepy downtown St. Pete, gentrification of the sea is not likely to be far off ...

Chicago’s City Council yesterday failed to override Mayor Richard Daley’s veto of a bill that would have required big-box retailers to pay an especially high minimum wage. It’s usually a bad idea, I often write, to try to impose other social values through land use laws. Why only big-box retailers? Because companies such as Wal-Mart and Target are wealthy and can afford a higher minimum wage? Well, why not big banks, big food companies, and big law firms? A clerk earning minimum wage in one of these big operations would be as deserving of a raise as a clerk who works in a big box.

Because the big box retailers are popular whipping boys in the current public debate? Now we’re betting closer to the truth. If the widespread critical rejection of the Supreme Court’s decision in Village of Belle Terre v. Boraas (1974) (town can discriminate against group houses in a college town) stands for the proposition that land use law shouldn’t “target” (pun possibly intended) one group simply because a lot of people don’t like them, shouldn’t this principle apply to big-box retailers? Land use and labor laws shouldn’t discriminate against big-box retailers simply because a lot of people (including vote-collecting politicians) simply don’t like them.

Another interesting twist to the Chicago story is that the retailers implied that if the ordinance were enacted, they would simply move new operations just over the city lines (indeed, Mayor Daley argued that such a step would especially hurt Chicago’s poorer black communities). I have no doubt that the retailers might have tried this. In the face of evidence such as this, why do some people still doubt the existence of competition among governmental jurisdictions to avoid regulation -– the so-called “race to bottom”?

What is “land use law”? It is remarkable how many people, including academics, cannot tell you that this is the umbrella term for law that addresses community development, zoning, sprawl, racial segregation, affordable housing, transportation, and other issues concerning how law shapes the spatial structure of our society, and vice versa. Land use law suffers from a lack of public awareness in part because it was only fairly recently that many people recognized the links among all of its components. Many still refer to the field as “land use planning,” which to me implies that it is still limited to the bureaucratic world of comprehensive plans, zoning maps, and variances. But this is no longer the case. Indeed, professional land use “planners” complain about the overuse and shapelessness of the word “planning,” as noted in this essay by Penn professor and city planner Eugenie Birch.

Prawfslawgs is collecting a legal “research canon,” yet it was only recently that somebody saw fit to tack on land use law to the “property” category (which usually focuses on the rights of private owners vis-à-vis each other). Others place land use law in “state and local government” (although topics such as environmental regulation and housing discrimination are federal).

Isn’t it time that land use law got its due? After all, as I like to say, this field of law arguably affects human happiness on a day-to-day basis (through rules that affect housing prices, traffic, and social integration) more than any other world of law.

Sometimes, “big plans” work. Trimuphs include the legal regime that preserved the French Quarter of New Orleans and the design that created the radial avenues of Washington, D.C. At a World Urban Forum this summer, people talked of the big plans of “Vancouverism,” and whether it serves as a model for North America.

Vancouver is new urbanism to the nth degree, as discussed in this video segment from the CBC (click on "Vancouver Model"). The city and province rejected freeways in the 1960s in favor of encouraging downtown residences and public transportation. Today, the fact that jumps out when one visits is residential density –- the city’s downtown is filled with condos and apartments that are intermingled with offices and shopping. Vancouver resembles European cities or New York more than it does even, say, Portland, Ore.

But the model faces obstacles in the United States. Would metropolitan Americans give up the dream of detached-single-family-homeownership for a condo in the city, as many affluent Vancouverites do? The city says that families are attracted to living downtown because it is “clean, green, and safe.” Are many American cities capable of such an achievement, considering our distinct social problems (including poor city schools, into which few middle-class American families are willing to be pioneers) and our almost genetic inability to give public spaces the care that we give our private ones?

It is disconcerting, five years after the attacks of 2001, that there is still little work done on the memorial at what was New York’s World Trade Center. The story of bickering and delays is evidence of the inherent problems in making decisions through a variety of “stakeholders.” It is also evidence of Americans’ propensity for aggrandizement and megalomania; there appears to be a feeling that unless we build a colossally complex memorial, we would not honor the victims sufficiently. Although the city recently announced decisions to scale back some of the more expensive ideas for underground galleries amongst the acres of waterfalls and trees, there is still disagreement over some features, including the question of whether to display of names of the victims randomly or group them by affiliation.

Meanwhile, the effort to change building codes for skyscrapers is proving to be equally difficult, as real estate interests are battling each potential amendment, such as requiring more and greater reinforcement of stairwells. It seems that nearly every “big plan” spurred by Sept. 11, 2001, including the designs for office tower rebuilding, is leading to disappointment.

“Make no little plans; they have no magic to stir men's blood …. Make big plans; aim high in hope and work, remembering that a noble, logical diagram once recorded will not die.” This is, of course, the advice of the great architect and urban designer Daniel Burnham (1846-1912). One often hears the first part of the quotation, but less often the conclusion about a “noble, logical” work’s not dying. Modern land use plans are too often about big ideas –- and the judgment of whether they are noble or logical is hotly debated. This week I write about a few such big plans. First, PBS is broadcasting a documentary called “Great Wall Across the Yangtze” about China’s colossal Three Gorges Dams, focusing on the enormous environmental, cultural, and social tolls that the dam project is taking. Such costs are hard to imagine in a republican democracy, where concentrated costs are fought tenaciously, regardless of the diffuse benefits. It is essential to consider the harms, of course, but it is also important to remember that floods in China have killed more people across history than any other type of disaster in any nation. Control of such floods is one of reasons for the dam system; Daniel Burnham would undoubtedly have been pleased.

Once again there’s a spate of studies linking the obesity problem and suburban sprawl. Here’s a report of the Trust for America’s Health and a Canadian study. Of course, no one should suggest that sprawl is bigger factor than, say, diet. Not surprisingly (to me, at least), the America’s Health report found that most of the fattest states are in the deep-fried South, while outdoorsy and health-oriented Colorado, Hawaii, and Vermont (despite Ben & Jerry’s!) were the slimmest –- evidence that regional diet and cultural attitudes are more important than sidewalks and housing density. Certainly, obesity in the suburbs can’t really be “blamed” on land use planning; there are plenty of parks and gyms in the suburbs that simply aren’t being used enough. I’d guess that urbanites tend to be slimmer not necessarily because they walk to work (which certainly helps, of course) but because they simply are out doing more things and burning more calories; they are busy doing things other than simply watching television, playing video games, and eating junk food. If suburban and rural kids would spend more time playing baseball and jumping rope, as their grandparents did, the problem wouldn’t be so bad …

It has been a long time since the brief 1980s’ era of national concern over the problem of homelessness. Today, many cities are simply trying to shove homeless persons out of sight, as they once were. Some of these efforts are censurable, of course –- especially those that simply push the homeless to neighboring jurisdictions. But some of the new homeless rules hold some grains of sense. In a new essay, for example, homeless advocate Tulin Ozdeger chastises ordinances recently passed in cities such as Las Vegas and Orlando as being heartless “don’t feed the homeless” laws. But the rules are subtler than that. The Las Vegas ordinance, for example, bans the feeding of 25 or more “indigent” people in public parks. This was passed not simply out of scorn for the homeless, but to avoid the location of private “mobile soup kitchens” in public parks. While government and private groups should do much more to help the poor, I believe it should not be at the expense of taking over the limited and unique spaces of our public parks.

Who has standing to bring claims of racially motivated zoning decisions? In a recent opinion, the U.S. Court of Appeals for the Third Circuit held that black residents of Darby Township, near Philadelphia, “have not asserted an actual injury that would confer constitutional standing upon them” to have the federal courts hear their claims that the local government “made land use decisions in order to limit the effect of the African-American vote in Darby Township.” Taliaferro v. Darby Township Zoning Bd., slip op. at 6, No. 05-02253, 2006 WL 2294839 (3d Cir. Aug. 10, 2006). The plaintiffs alleged that the government approved a zoning change to allow commercial development instead of residential development, in order to discourage new residences that would likely be occupied by African Americans. While the Third Circuit concluded that there was no standing for the claim of harm to political power, the Court did allow standing for claims of neighbors that the zoning change would decrease their property values.

This decision is the latest in the line of restrictive standing decisions that prevent important land use claims from being heard by the federal courts. When a local government uses land use law to keep out unwanted people, it may be very difficult for advocates to find a specific plaintiff with an “injury” that is “concrete” and “particularized” enough grant standing. Thus even warranted claims of racism and unlawful exclusion can remain unchallenged …

On Labor Day, it's worth reflecting on the state of the political debate over what used to be called the "laboring class," or the "working class." This was generally understood to refer to perhaps the poorest one-third of the nation. Today, these people have almost disappeared from the national political debate; it is acceptable in most circles to talk only of helping "middle-class families." Talk of helping "the poor" is considered political suicide in many debates. So how do advocates of low-cost housing gather public support, especially when rising housing prices have not cut the homeownership rate, which stays near the all-time high of around 69 percent?

The answer may be to appeal to the selfishness of the great masses of middle-class families who want government to help them. With housing, this case can done by an appeal to "workforce housing," a fascinating term of rhetoric that is sweeping through the nation's local political debates. If we don't help provide for low-cost housing, who will police our streets, put out our fires, nurse in our hospitals, and teach our children? This problem is especially alarming for middle-class families who live in increasingly large numbers in isolated suburbs and exurbs. Here are discussions of efforts to use the term to get low-cost housing built and paid for, from Fannie Mae, the American Planning Association, and the Urban Land Institute. Here's hoping that the rhetorical device of "workforce housing" will get more low-cost housing built for less affluent people who labor in all occupations.

The land use decisions that China make today will affect how the world's most populous nation, indeed the world, will look like for years to come. Enormous land and water projects such as the Three Gorges Dam will transform both growth urban and rural growth, as well as the environment, in myriad ways. Meanwhile, the push for urbanization will soon make China's factories the world's biggest source of greenhouse gases.

Meanwhile, China's cities are becoming more and more like the West. The Chinese premier has warned local government leaders, who have been given more power in recent years, to guard against urban sprawl and the excessive use of resources. And the most famous feature of China's cities under the Communist regime -- the bicycle -- may soon be the thing of the past.

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Editors

Craig Anthony Arnold

Boehl Chair in Property and Land Use Professor of Law
Affiliated Professor of Urban Planning
Ph.D. Faculty in Urban and Public Affairs
Chair of the Center for Land Use and Environmental Responsibility,
University of Louisville